Spruce Co.

National Labor Relations Board - Board Decisions

Aug 16, 1996

321 N.L.R.B. 919 (N.L.R.B. 1996)

919
321 NLRB No. 134
SPRUCE CO.
1 The Respondent in its answer appears to contest the validity of
the certification on the basis of its objections to the election which
alleged that the Union had improperly promised increased wages and
benefits to employees and filed a false unfair labor practice charge
accusing the Respondent of denying an employee a pay raise. The
Regional Director recommended that these objections be overruled,
and the Board adopted the Regional Director’s findings and rec-
ommendations and certified the Union by decision dated February
21, 1996. Although the Respondent in its answer to the complaint
also denies that the mail balloting in the election was secret, and as-
serts that this led to unlawful pressure on individuals, the Respond-
ent did not assert this objection in the underlying representation pro-
ceeding.
2 The Respondent in its answer denies the conclusory allegations
that it is engaged in commerce within the meaning of Sec. 2(2), (6),
and (7) of the Act and that the Union is a labor organization within
the meaning of Sec. 2(5) of the Act. However, the Respondent’s an-
swer admits the underlying factual allegation that in 1995 it pur-
chased and received goods valued in excess of $50,000 directly from
out of state, which clearly establishes that the Respondent is engaged
in commerce within the meaning of the Act. See Siemons Mailing
Service, 122 NLRB 81 (1959). In addition, the Respondent entered
into a Stipulated Election Agreement in the underlying representation
proceeding whereby it stipulated that it is an employer engaged in
Continued
Spruce Company and Teamsters Local 289, Bakery
and Laundry Allied, Sales Drivers and Ware-
housemen. Case 18–CA–14047
August 16, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Pursuant to a charge filed on May 7, 1996, the Gen-
eral Counsel of the National Labor Relations Board
issued a complaint and notice of hearing on June 4,
1996, alleging that the Respondent has violated Section
8(a)(5) and (1) of the National Labor Relations Act by
refusing the Union’s request to bargain following the
Union’s certification in Case 18–RC–15824. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed an an-
swer admitting in part and denying in part the allega-
tions in the complaint.
On July 16, 1996, the General Counsel filed a Mo-
tion for Summary Judgment and brief in support, with
exhibits attached. On July 17, 1996, the Board issued
an order transferring the proceeding to the Board and
a Notice to Show Cause why the motion should not be
granted. The Respondent did not file a response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits that the Union
was certified and requested it to bargain, but attacks
the validity of the certification and denies that it has
refused to recognize and bargain with the Union.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding.1 The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that no issues warranting a hearing are
raised with respect to the allegation that the Respond-
ent has refused to bargain with the Union. Although
the Respondent has denied this allegation in its answer
and in an affidavit given to the Region during the in-
vestigation (a copy of which is attached to the General
Counsel’s motion), nowhere in its answer or affidavit
does the Respondent assert that it has offered or agreed
to bargain with the Union. On the contrary, the Re-
spondent asserts that it has instead advised the Union
that the Respondent’s dealings ‘‘continue to be with
the NLRB’’ and that the Union should contact the
NLRB. Moreover, the Respondent has not responded
to the General Counsel’s Motion for Summary Judg-
ment and thus has not contested the General Counsel’s
assertion therein that the Respondent’s foregoing re-
sponses to the Union’s requests constitute a refusal to
bargain. In these circumstances, we find that the Re-
spondent is in fact refusing to bargain with the Union
as alleged. See Ritz Carlton Hotel Co., 321 NLRB 659
(1996) and cases cited therein.
Accordingly, we grant the Motion for Summary
Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Minnesota
corporation, with an office and place of business in
Bloomington, Minnesota, has been engaged in the
business of providing laundry service and linen deliv-
ery.
During the calendar year ending December 31, 1995,
the Respondent, in conducting its business operations,
purchased and received at its Bloomington, Minnesota
facility goods valued in excess of $50,000 directly
from points outside the State of Minnesota.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.2
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of the Act and also effectively stipu-
lated that the Union is a labor organization. Accordingly, we find
that the Respondent’s denials do not raise any issue warranting a
hearing in this proceeding. See, e.g., Presbyterian University Hos-
pital, 302 NLRB 799 fn. 3 (1991), and Biewer Wisconsin Sawmill,
306 NLRB 732 fn.1 (1992).
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following a mail ballot election held between Au-
gust 15 and 23, 1995, the Union was certified on Feb-
ruary 21, 1996, as the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit:
All full-time and regular part-time drivers em-
ployed by the Respondent at its Bloomington,
Minnesota facility; excluding office clerical em-
ployees, production and maintenance employees,
guards and supervisors as defined in the Act and
all other employees.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since late March 1996, the Union has requested the
Respondent to bargain, and since about the same time
the Respondent has refused. We find that this refusal
constitutes an unlawful refusal to bargain in violation
of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing since late March 1996 to bargain with
the Union as the exclusive collective-bargaining rep-
resentative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Spruce Company, Bloomington, Min-
nesota, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters Local 289,
Bakery and Laundry Allied, Sales Drivers and Ware-
housemen as the exclusive bargaining representative of
the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time drivers em-
ployed at its Bloomington, Minnesota facility; ex-
cluding office clerical employees, production and
maintenance employees, guards and supervisors as
defined in the Act and all other employees.
(b) Within 14 days after service by the Region, post
at its facility in Bloomington, Minnesota, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the
notice, on forms provided by the Regional Director for
Region 18 after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since May 7, 1996.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
921SPRUCE CO.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Teamsters
Local 289, Bakery and Laundry Allied, Sales Drivers
and Warehousemen as the exclusive representative of
the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time drivers em-
ployed at our Bloomington, Minnesota facility;
excluding office clerical employees, production
and maintenance employees, guards and super-
visors as defined in the Act and all other employ-
ees.
SPRUCE COMPANY